4/30/2006

Second Amendment From a New Angle

The ways in which the statement, "A well-regulated militia, being necessary for the defense of a free state, the right of the people to keep and bear arms shall not be infringed," has been interpreted to better match prevailing social mores are many and varied. What many interpretations have in common is the understanding that the "well-regulated militia" is the subject, or at least a restriction on the subject; the question then becomes whether the "people" are considered to be the militia (as indeed is made clear in the United States Code), or whether for our purposes the militia is a more restricted group, such as the National Guard.

In a contentious comment thread at Protein Wisdom over constitutional interpretation in general, commenter lee suggests an interpretation of the Second Amendment I had not seen before:

Actually, the intent of the second ammendment was to keep the government from enslaving the people. It’s because of the well-regulated militia that the right to bear arms shall not be infringed.

In other words, because of the need to keep standing armies (which the Founders frequently reviled as being the first step towards tyranny), it is necessary to ensure that the people are powerful enough to resist them if necessary. Without a "well-regulated militia," there would be much less danger that the government could oppress the people with impunity; to mitigate the danger, the people must never be prevented from arming themselves.

Is this interpretation correct? It depends on what you mean by "correct." This was probably not the precise syntactical meaning intended by the Founders; the phrase "well-regulated militia, composed of the body of the people" occurs in Article XIII of the Virginia Declaration of Rights (adopted in 1776, well before the Constitution) set against a strong attack on standing armies, making it unlikely that in the Constitution the phrase "well-regulated militia" actually referred to standing armies themselves. But if you are not an Intentionalist, and prefer to work from the text itself, lee's understanding seems as defensible as any other.

More importantly, it harmonizes the Second Amendment with the rest of the Bill of Rights as laying out a right of the people against the government. In that sense, and in the sense that its conclusions undoubtedly match the goal of the Founders, the above understanding may be called "correct."